Associations File Suit Over Silica Rule
A coalition of construction industry associations taking issue with the new Occupational Safety and Health Administration silica rule are taking their concerns to a federal appeals court.
Eight groups, including affiliates of the Associated Builders and Contractors Inc., the National Association of Home Builders and the Associated General Contractors of America, have filed a petition Monday (April 4) in the U.S. Court of Appeals for the Fifth Circuit.
The organizations argue that the federal agency did not fully address their concerns about the rule’s impact on the construction industry.
Rule Made Final
The "Occupational Exposure to Respirable Crystalline Silica" rule, amending silica exposure regulations for the first time since 1971, was made final March 25.
The rule represents the fruition of decades of research and a lengthy stakeholder engagement process—including the consideration of thousands of public comments, according to U.S. Secretary of Labor Thomas E. Perez.
In terms of permissible exposure limits, the updated rule reduces the permissible exposure limit for crystalline silica from 250 micrograms per cubic meter of air, averaged over an eight-hour shift—to 50 micrograms. The regulation also has other provisions aimed at protecting workers, such as requirements for exposure assessment, methods of controlling exposure, recordkeeping, hazard communication, respiratory protection and medical surveillance.
OSHA warns that exposure to respirable crystalline silica can cause silicosis, lung cancer, other respiratory diseases and kidney diseases.
Both standards take effect on June 23, after which industries have one to five years to comply with most requirements.
The groups worry that rule compliance is beyond the capabilities of current technology.
In seeking the court’s review, the industry partners say they are deeply committed to providing a safe construction environment; however, they have “significant concerns about whether this new rule is technically feasible, given that the agency's final permissible exposure limit is beyond the capacity of existing dust filtration and removal technology,” according to Stephen E. Sandherr, CEO of the Associated General Contractors.
Sandherr added that while the administration did make a number of the changes to the final rule, including dropping requirements for contractors to establish regulated areas that would block access to parts of construction sites where dust is being generated, the AGC continues to feel that this final rule is not acceptable in its current form.
The final rule is written as two standards, one for construction and one for general industry and maritime.
Echoing those remarks, the Associated Builders and Contractors said the agency’s rule demonstrates a “fundamental misunderstanding of the real world of construction.”
About Silica Exposure
Silica is one of Earth's most common minerals, found in stone, rock, brick, mortar and block. Exposure to airborne silica dust occurs in operations involving cutting, sawing, drilling and crushing of concrete, brick, block and other stone products and in operations using sand products, such as in glass manufacturing, foundries and abrasive blasting.
According to OSHA, about 2.3 million men and women are exposed to respirable crystalline silica in their workplaces, including two million construction workers who drill and cut silica-containing materials such as concrete and stone. An additional 300,000 workers in operations such as brick manufacturing, foundries and hydraulic fracturing also face exposure.
OSHA estimates that when the final rule becomes fully effective, it will save more than 600 lives annually and prevent more than 900 new cases of silicosis each year.
Industry groups previously estimated the rule will cost the industry nearly $5 billion per year, about $4.5 billion per year more than OSHA’s estimate.
The petition starts what is likely to be a lengthy legal challenge to the measure, Sandherr said, noting that the association would continue to work with Congress and the next presidential administration to seek measures to improve the rule in a way that “truly benefits the health and safety of our workforce.”